Montesquieu explains that “[p]rior to all these laws are the laws of nature, so named because they derive uniquely from the constitution of our being. To know them well, one must consider a man before the establishment of societies. The laws he would receive in such a state will be the laws of nature. The law that impresses on us the idea of a creator and thereby leads us toward him is the first of the natural laws in importance, though not first in the order of these laws. A man in the state of nature would have the faculty of knowing rather than knowledge. It is clear that his first ideas would not be speculative ones; he would think of the preservation of his being before seeking the origin of his being. Such a man would at first feel only his weakness; his timidity would be extreme.… In this state, each feels himself inferior; he scarcely feels himself an equal. Such men would not seek to attack one another, and peace would be the first natural law.”1
Like Locke, Montesquieu rejects explicitly Thomas Hobbes’s view of the state of man in nature. He observes that “Hobbes gives men first the desire to subjugate one another, but this is not reasonable. The idea of empire and domination is so complex and depends on so many other ideas, that it would not be the one they would first have. Hobbes asks, If men are not naturally in a state of war, why do they always carry arms and why do they have keys to lock their doors? But one feels that what can happen to men only after the establishment of societies, which induced them to find motives for attacking others and for defending themselves, is attributed to them before the establishment.… I have said that fear would lead men to flee one another, but the marks of mutual fear would soon persuade them to approach one another” (1, 1, 2).
As men join together in society and subsequently form governments, Montesquieu argues, the state of war begins. By this he means that nations need to protect themselves from other nations, and people within each nation must protect themselves from each other and from a government. There can be no political liberty without law. Respecting the establishment of laws, Montesquieu explains “Considered as living in a society that must be maintained, they have laws concerning the relation between those who govern and those who are governed, and this is the POLITICAL RIGHT. Further, they have laws concerning the relation that all citizens have with one another, and this is the CIVIL RIGHT” (1, 1, 2).
Montesquieu wrote of the nature of governments. “There are three kinds of government: REPUBLICAN, MONARCHICAL, and DESPOTIC. To discover the nature of each, the idea of them held by the least educated of men is sufficient. I assume three definitions, or rather, three facts: one, republican government is that in which the people as a body, or only a part of the people, have sovereign power; monarchical government is that in which one alone governs, but by fixed and established laws; whereas, in despotic government, one alone, without law and without rule, draws everything along by his will and caprices” (1, 1, 2). In republican government, Montesquieu explains, the people must be able to vote in elections. “A people having sovereign power should do for itself all it can do well, and what it cannot do well, it must do through ministers. Ministers do not belong to the people unless the people name them; therefore it is a fundamental maxim of this government that the people should name their ministers, that is, their magistrates” (1, 2, 1).
Montesquieu points out, “There is this difference between the nature of the government and its principle: its nature is that which makes it what it is, and its principle, that which makes it act. The one is its particular structure, and the other is the human passions that set it in motion” (1, 3, 1). He explains, “There need not be much integrity for a monarchical or despotic government to maintain or sustain itself. The force of the law in the one and the prince’s ever-raised arm in the other can rule or contain the whole.” As for republican government, Montesquieu asserts that “in a popular state there must be an additional spring, which is VIRTUE. What I say is confirmed by the entire body of history and is quite in conformity with the nature of things. For it is clear that less virtue is needed in a monarchy, where the one who sees to the execution of the laws judges himself above the laws, than in a popular government, where the one who sees to the execution of the laws feels that he is subject to them himself and that he will bear their weight.… But in a popular government when the laws have ceased to be executed, as this can come only from the corruption of the republic, the state is already lost” (1, 3, 3). In despotic government, “virtue is not at all necessary to it.…” (1, 3, 8)
Montesquieu saw despotism, including its frequent antecedent, anarchy, as a continuing threat to republican government. “When that virtue ceases, ambition enters those hearts that can admit it, and avarice enters them all. Desires change their objects: that which one used to love, one loves no longer. One was free under the laws, one wants to be free against them. Each citizen is like a slave who has escaped from his master’s house. What was a maxim is now called severity; what was a rule is now called constraint; what was vigilance is now called fear. There, frugality, not the desire to possess, is avarice. Formerly the goods of individuals made up the public treasury; the public treasury has now become the patrimony of individuals. The republic is a cast-off husk, and its strength is no more than the power of a few citizens and the license of all” (1, 3, 3).
Montesquieu warned, “In despotic states the nature of the government requires extreme obedience, and the prince’s will, once known, should produce its effect as infallibly as does one ball thrown against another. No tempering, modification, accommodation, terms, alternatives, negotiations, remonstrances, nothing as good or better can be proposed. Man is a creature that obeys a creature that wants. He can no more express his fears about a future event than he can blame his lack of success on the caprice of fortune. There, men’s portion, like beasts’, is instinct, obedience, and chastisement. It is useless to counter with natural feelings, respect for a father, tenderness for one’s children and women, laws of honor, or the state of one’s health; one has received the order and that is enough” (1, 3, 10). Yet, despite man’s preference for liberty, most live under tyranny. Montesquieu explained that “despite men’s love of liberty, despite their hatred of violence, most peoples are subjected to this type of government. This is easy to understand. In order to form a moderate government, one must combine powers, regulate them, temper them, make them act; one must give one power a ballast, so to speak, to put it in a position to resist another; this is a masterpiece of legislation that chance rarely produces and prudence is rarely allowed to produce. By contrast, a despotic government leaps to view, so to speak; it is uniform throughout; as only passions are needed to establish it, everyone is good enough for that” (1, 5, 14).
It follows that virtue is mostly impossible in a monarchy and nonexistent under despotism, but is crucial to sustain a republican government. “Virtue, in a republic, is a very simple thing: it is love of the republic; it is a feeling and not a result of knowledge; the lowest man in the state, like the first, can have this feeling.” However, virtue alone is not enough. “Despotic government has fear as its principle; and not many laws are needed for timid, ignorant, beaten-down people” (1, 5, 13), but republican government requires fixed, established laws adopted by the representatives of the people, which create a culture of support for the republic. “Laws must relate to the nature and the principle of the government that is established or that one wants to establish, whether those laws form it as do political laws, or maintain it, as do civil laws” (1, 1, 3).
Montesquieu warns of the tyranny of concentrated power resulting from either unjust laws or the application of laws unjustly, and the anarchy of radical egalitarianism that leads to despotism. He wrote, “The principle of democracy is corrupted not only when the spirit of equality is lost but also when the spirit of extreme equality is taken up and each one wants to be the equal of those chosen to command. So the people, finding intolerable even the power they entrust to the others, want to do everything themselves: to deliberate for the senate, to execute for the magi
strates, and to cast aside all judges” (1, 8, 2). As a result, Montesquieu observed, “democracy has to avoid two excesses: the spirit of inequality, which leads it to aristocracy or to the government of one alone, and the spirit of extreme equality, which leads it to the despotism of one alone, as the despotism of one alone ends by conquest” (1, 8, 2).
Montesquieu also fears the destructive consequences of excessive taxation on liberty. He wrote, “These great advantages of liberty have caused the abuse of liberty itself. Because moderate government has produced remarkable results, this moderation has been abandoned; because large taxes have been raised, one has wanted to raise excessive ones; and, disregarding the hand of liberty that gave this present, one has turned to servitude, which refuses everything. Liberty has produced excessive taxes, but the effect of these excessive taxes is to produce servitude in their turn, and the effect of servitude is to produce a decrease in taxes” (2, 13, 15). Montesquieu argued that in “moderate states” the outright confiscation of property is destructive of the individual. “Confiscations would render the ownership of goods uncertain; they would despoil innocent children; they would destroy a family man when it was only a question of punishing a guilty man. In republics, confiscations would have the ill effect of taking away the equality which is their soul, by depriving a citizen of his physical necessities” (1, 5, 15). Montesquieu considered excessive taxation and the confiscation of private property an assault on equality—that is, the individual’s liberty and rights. Montesquieu’s view of equality, therefore, is consistent with Locke’s.
Montesquieu also viewed commerce as essential to the character of republican government. “[T]he spirit of commerce brings with it the spirit of frugality, economy, moderation, work, wisdom, tranquility, order, and rule.…” (1, 5, 6) Furthermore, commerce helps promote republican mores in other countries. “Commerce cures destructive prejudices, and it is an almost general rule that everywhere there are gentle mores, there is commerce and that everywhere there is commerce, there are gentle mores.…” (4, 20, 1) Commerce also encourages prosperity. “In short, one’s belief that one’s prosperity is more certain in these states makes one undertake everything, and because one believes that what one has acquired is secure, one dares to expose it in order to acquire more; only the means for acquisition are at risk; now, men expect much of their fortune.…” Conversely, despotism begets hardship and poverty. “As for the despotic state, it is useless to talk about it. General rule: in a nation that is in servitude, one works more to preserve than to acquire; in a free nation, one works more to acquire than to preserve” (4, 20, 4).
Montesquieu explained that unlike the poor in republican governments, who in freedom can better their circumstances, in despotic states the poor have no hope. “There are two sorts of poor peoples: some are made so by the harshness of the government, and these people are capable of almost no virtue because their poverty is a part of their servitude; the others are poor only because they have disdained or because they did not know the comforts of life, and these last can do great things because this poverty is a part of their liberty” (4, 20, 3).
Industrious men and societies are also to be encouraged. “Countries which have been made inhabitable by the industry of men and which need that same industry in order to exist call for moderate government” (3, 18, 6). “Men, by their care and their good laws, have made the earth more fit to be their home. We see rivers flowing where there were lakes and marshes; it is a good that nature did not make, but which is maintained by nature. When the Persians were the masters of Asia, they permitted those who diverted the water from its source to a place that had not yet been watered to enjoy it for five generations, and, as many streams flow from the Taurus mountains, they spared no expense in getting water from there. Today, one finds it in one’s fields and gardens without knowing where it comes from. Thus, just as destructive nations do evil things that last longer than themselves, there are industrious nations that do good things that do not end with themselves” (3, 18, 7). Montesquieu, like Locke, explained that commerce, industriousness, and laws that inspire them require a moderate or republican government, which, in combination, preserve and improve the society. Alternatively, “Every lazy nation is grave; for those who do not work regard themselves as sovereigns of those who work” (3, 19, 9).
Moreover, commerce is a natural outgrowth of republican government, where individuals are largely free to make self-interested economic decisions. Montesquieu wrote, “Commerce is related to the constitution. In government by one alone, it is ordinarily founded on luxury, and though it is also founded on real needs, its principal object is to procure for the nation engaging in it all that serves its arrogance, its delights, and its fancies. In government by many, it is more often founded on economy. Traders, eyeing all the nations of earth, take to one what they bring from another.…” (4, 20, 4)
Montesquieu, always mindful of history’s preference for tyranny, argued that political liberty exists within the context of a constitution—a fixed, established law. The constitution must institute a governing structure that controls the governors. He proposed that the three powers of government—that is, the legislative, the executive, and the judicial—be divided into three separate entities. In this not only does Montesquieu add significant clarity to Locke’s notion of division of powers, but his words have a major influence on the future constitution of the American republic, as they did in the state constitutions.
Montesquieu wrote, “Political liberty in a citizen is that tranquility of spirit which comes from the opinion each one has of his security, and in order for him to have this liberty the government must be such that one citizen cannot fear another citizen. When legislative power is united with executive power in a single person or in a simple body of magistracy, there is no liberty, because one can fear that the same monarch or senate that makes tyrannical laws will execute them tyrannically. Nor is there liberty if the power of judging is not separate from legislative power and from executive power. If it were joined to legislative power, the power over the life and liberty of the citizens would be arbitrary, for the judge would be the legislator. If it were joined to executive power, the judge could have the force of an oppressor. All would be lost if the same man or the same body of principal men, either of nobles, or of the people, exercised these three powers: that of making the laws, that of executing public resolutions, and that of judging the crimes or the disputes of individuals” (2, 2, 6).
Montesquieu urged an independent and temporary judiciary in which judges, chosen from the people, strictly adhered to the law. He wrote, “The power of judging should not be given to a permanent senate but should be exercised by persons drawn from the body of the people at certain times of the year in the manner prescribed by law to form a tribunal which lasts only as long as necessity requires.… But though tribunals should not be fixed, judgments should be fixed to such a degree that they are never anything but a precise text of the law. If judgments were the individual opinion of a judge, one would live in this society without knowing precisely what engagements one has contracted” (2, 2, 6). Therefore, Montesquieu insisted that the role of a judge is to apply the law, not impose his opinion or prejudice. The latter approach is destructive of the nature of the judiciary and the broader republican government.
Furthermore, in regard to governing, Montesquieu raised numerous cautions to legislators, which, if ignored, he believed could gradually lead to despotism.
• The government should not force a way upon the people against their will, for to do so is tyranny by legislation. “There are two sorts of tyranny: a real one, which consists in the violence of the government, and one of opinion, which is felt when those who govern establish things that run counter to a nation’s way of thinking” (3, 19, 3).
• It is essential, therefore, that in republican government, representatives avoid efforts intended to change the general spirit of the nation—that is, the legislator must help preserve and protect society, not eradi
cate it. As if describing the American people, Montesquieu wrote, “If there were in the world a nation which had a sociable humor, an openness of heart, a joy of life, a taste, an ease in communicating its thoughts; which was lively, pleasant, playful, sometimes imprudent, often indiscreet; and which had with all that, courage, generosity, frankness, and a certain point of honor, one should avoid disturbing its manners by laws, in order not to disturb its virtues. If the character is generally good, what difference do a few faults make? … The legislator is to follow the spirit of the nation when doing so is not contrary to the principles of the government, for we do nothing better than what we do freely and by following our natural genius. If one gives a pedantic spirit to a nation naturally full of gaiety, the state will gain nothing, either at home or abroad. Let it do frivolous things seriously and serious things gaily” (3, 19, 5).
• If change is considered desirable, the manner in which it is accomplished is, first and foremost, through persuasion, not legal coercion and government fiat. “We have said that the laws were the particular and precise institutions of the legislator and the mores and manners, the institutions of the nation in general. From this it follows that when one wants to change the mores and manners, one must not change them by laws, as this would appear to be too tyrannical; it would be better to change them by other mores and other manners” (3, 19, 9).
• Montesquieu argues that government should not attempt to correct or control all things and intervene in all matters. Government should be limited in its power, scope, and purposes. “May we be left as we are, said a gentleman of [a republican government]. Nature repairs everything. It has given us a vivacity capable of offending and one apt to make inconsiderate; this same vivacity is corrected by the politeness it brings us, by inspiring us with a taste for the world.… May we be left as we are. Our discretions joined to our harmlessness make unsuitable such laws as would curb our social humor” (3, 19, 6).
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